In the Interest of: D.R., Appeal of: D.R. and J.R.

J-A14029-19

2019 PA Super 230

IN THE INTEREST OF: D.R., A : IN THE SUPERIOR COURT OF

MINOR : PENNSYLVANIA

:

:

APPEAL OF: D.R. AND J.R. :

:

:

:

: No. 311 WDA 2019

Appeal from the Order Entered February 1, 2019

In the Court of Common Pleas of Greene County Criminal Division at

No(s): 6 JM 2018

IN THE INTEREST OF: A.R., A : IN THE SUPERIOR COURT OF

MINOR : PENNSYLVANIA

:

:

APPEAL OF: D.R. AND J.R. :

:

:

:

: No. 312 WDA 2019

Appeal from the Order Entered February 1, 2019

In the Court of Common Pleas of Greene County Criminal Division at

No(s): No. 7 JM 2018

IN THE INTEREST OF: G.R., A : IN THE SUPERIOR COURT OF

MINOR : PENNSYLVANIA

:

:

APPEAL OF: D.R. AND J.R. :

:

:

:

: No. 313 WDA 2019

Appeal from the Order Entered February 1, 2019

In the Court of Common Pleas of Greene County Criminal Division at

No(s): 8 JM 2018

IN THE INTEREST OF: R.R., A : IN THE SUPERIOR COURT OF

MINOR : PENNSYLVANIA

:

:

J-A14029-19

APPEAL OF: D.R. AND J.R. :

:

:

:

: No. 314 WDA 2019

Appeal from the Order Entered February 1, 2019

In the Court of Common Pleas of Greene County Criminal Division at

No(s): No. 9 JM 2018

IN THE INTEREST OF: C.R., A : IN THE SUPERIOR COURT OF

MINOR : PENNSYLVANIA

:

:

APPEAL OF: D.R. AND J.R. :

:

:

:

: No. 315 WDA 2019

Appeal from the Order Entered February 1, 2019

In the Court of Common Pleas of Greene County Domestic Relations at

No(s): 10 JM 2018

BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J.

OPINION BY KUNSELMAN, J.: FILED JULY 26, 2019

D.R. (Father) and J.R. (Mother) appeal the court’s order compelling their

cooperation with Fayette County Children and Youth Services Agency (Fayette

CYS) to submit to a home inspection, as well as for Father to take a drug test,

pursuant to the Child Protective Services Law (CPSL), 23 Pa.C.S.A. §§ 6301,

et seq., and corresponding regulations. The parents argue,1 inter alia, that

the order violated their state and federal constitutional rights against

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1Father, an attorney, has represented himself and Mother throughout these

proceedings.

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unreasonable searches and seizures. After careful consideration, we agree

and vacate the trial court’s order.

The pertinent history discloses the following:

In January 2019, Fayette CYS presented a “motion to compel

cooperation with [General Protective Services] assessment” before the Greene

County Court of Common Pleas.2 Fayette CYS averred that it received three

separate reports of Father being under the influence of an unknown substance.

In one of those instances, Father was accompanied by one of his five children.

In the third report, an allegation was made that Father abused Mother, but

that criminal charges were dismissed because she refused to testify. Fayette

CYS interviewed all the children and sought judicial records of the purported

domestic violence. The agency could not corroborate the allegations. Fayette

CYS requested that the parents submit to a home inspection and that Father

submit to a drug test. The parents refused.

The parents objected to the motion to compel, arguing that Fayette CYS

should have filed a verified petition. They also alleged that they lacked notice

and an opportunity to be heard. The parents’ contended further that the judge

assigned to his case should recuse, because Father had active cases before

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2As a part of Father’s private practice, he represented parents who are under

investigation by the Greene County Children and Youth Services Agency

(Greene CYS). Greene CYS determined that it had a conflict of interest in this

matter and so Fayette CYS assumed the responsibility of investigating the

allegations.

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the court. The court set the matter for a hearing ten days later, but denied

the parents’ request to recuse. After a hearing, the court ordered the parents

to comply with the home inspection and ordered Father to submit to a drug

test via an observable urine screen.3 The court furthered ordered the parents

to “cooperate” with Fayette CYS and threatened sanctions if they did not. The

parents filed this timely appeal. They raised ten issues:

1. Did the court err by entertaining [Fayette CYS]’s

unverified motion to compel when no abuse or neglect

had been alleged when the law requires the agency to

file a verified petition when requesting court action on

abuse allegations?

2. Did the court err by granting [Fayette CYS]’s motion

when the motion was not presented to the court or

served on [the parents] more than 60 days after the

allegations or reports were made?

3. Did the court err by finding that the allegations

against [the parents] amounted to actual reports of

child abuse and that probable cause existed to enter

the home when the agency freely admitted no abuse

was alleged?

4. Did the court err in refusing to apply the “probable

cause” standard to [Fayette CYS]’s motion and

thereafter finding that [Fayette CYS]’s request was

not of the same standard as a search warrant?

5. Does [Fayette CYS]’s motion and the court’s order for

entry into the home, the body and compliance with

[Fayette CYS] amount to an illegal search and seizure

under the state and federal constitutions?

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3 An “observable” urine screen necessitates that the administrator of the drug

test watch the urine exit the penis to ensure the integrity of the sample.

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6. Did the court err and/or violate appellant Mother’s

constitutional rights by issuing an order against her

when no allegations were made against Mother?

7. Did the court violate [the parents’] constitutional

rights by issuing an order against [the parents] for

sanctions if they did not comply with said order?

8. Does the CPSL allow for urine drug testing of private

citizens and if so does observable urine testing violate

the [Father’s] constitutional rights?

9. Did the court err denying the motion to recuse itself

and the motion to remove the case from the

jurisdiction?

10. Did the court err prohibiting [Father] from asking

if he reporting sources were [CYS] employees when

the CPSL mandates CPSL reports from employees

must be made within 24 hours of the alleged incident?

Parents’ Brief at 12-14 (excess capitalization omitted).

First, we briefly address the issue of mootness. At oral argument, Father

indicated that the parents had not complied with the court’s order to cooperate

with Fayette CYS. From what we can discern, the trial court has not enforced

its order while the matter was on appeal. See Pa.R.A.P. 1701(b)(2).

Regardless of whether the parents complied with the order, however, we

conclude that the matter would still be properly before us. In In re Petition

to Compel Cooperation with Child Abuse Investigation, a near carbon

copy of the instant matter and one we discuss in great detail infra, we

explained that these same issues were clearly capable of repetition while

evading appellate review. 875 A.2d 365, 370 (Pa. Super. 2005). We may

properly review the instant case.

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Next, we must determine whether the parents’ issues are preserved for

our review. Pennsylvania courts have repeatedly held that an appellant

waives all matters for review where he identifies an outrageous number of

issues in the concise statement. See Jones v. Jones, 878 A.2d 86 (Pa. Super.

2005) (holding that a seven-page, twenty-nine issue statement resulted in

waiver). This Court may also find waiver where a concise statement is too

vague. See In re A.B., 63 A.3d 345, 350 (Pa. Super. 2013) (“When a court

has to guess what issues an appellant is appealing, that is not enough for

meaningful review.”) (citation omitted).

Here, the parents were obligated to file a concise statement of errors,

pursuant to Pa.R.A.P. 1925(a)(2). Although Rule 1925(b) dictates that the

number of issues raised in a concise statement will not be grounds for finding

waiver, this principle applies only “[w]here non-redundant, non-frivolous

issues are set forth in an appropriately concise manner[.]” Pa.R.A.P.

1925(b)(4)(iv); see also Kanter v. Epstein, 866 A.2d 394, 401 (Pa. Super.

2004) (holding that by “raising an outrageous number of issues” in a Rule

1925 statement, an appellant impedes the trial court’s ability to prepare an

opinion addressing the issues on appeal, thereby effectively precluding

appellate review).

In their concise statement, the parents listed 25 numbered paragraphs

alleging various improprieties. The trial court, impeded by the deluge or

perhaps cognizant of our dim view of rambling concise statements, chose not

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to discuss the enumerated errors individually. Instead, the court reviewed

the transcript and articulated generally the reasons for its decision.

Based on our review, we conclude that Father has preserved four

primary issues:

A. Whether the trial court erred in denying the parents’

motion to recuse?

B. Whether CYS’s motion to compel cooperation was

procedurally appropriate?

C. Whether the trial court erred in ordering the parents’

to submit to a home inspection?

D. Whether the trial court erred in ordering Father to

submit to a urine test?

We begin with Father’s contention that the Hon. Gerald R. Solomon, the

senior judge assigned to the case, should have recused.4 Usually the prudent

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4 At first glance, this issue appears untimely. Father presented the motion to

recuse at the first court date, on January 18, 2019. By order, signed and

docketed on the same date, the court denied the request. The parents waited

to appeal this decision until after the resolution of the substantive issues in

the motion to compel. Because this case is designated as a Children’s Fast

Track, Father filed contemporaneously the notice of appeal and concise

statement on February 20, 2019. Regarding the recusal issue, this timeline

puts the parents beyond the thirty days allowable under Pa.R.A.P. 903(a).

However, this Court has held that a pre-trial motion seeking to recuse a judge

from further proceedings is not a final order. See Krieg v. Krieg, 743 A.2d

509, 511 (Pa. Super. 1999). In Krieg, we treated a motion to recuse as a

pre-trial motion, because the appellant-father sought the judge’s recusal in

anticipation of further custody proceedings. See id. at n.3. In that context,

we concluded that a motion to recuse may be reviewed only after an

underlying action is filed and has been decided. Id. Here, we find the situation

akin to that in Krieg. We conclude that the court’s denial of Father’s motion

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practice of this Court is to avoid commenting on all of an appellant’s issues if

one issue constitutes reversible error. See, e.g., Landis v. Landis, 869 A.2d

1003 (Pa. Super. 2005). Because we assume that this case will be remanded

to the same judge, we conclude that the circumstances of this case do not

warrant such a recusal.

Our scope and standard of review regarding the subject is settled:

The denial of a motion to recuse is preserved as an

assignment of error that can be raised on appeal following

the conclusion of the case. We review a trial court's decision

to deny a motion to recuse for an abuse of

discretion. Indeed, our review of a trial court's denial of a

motion to recuse is exceptionally deferential. We extend

extreme deference to a trial court's decision not to recuse.

We recognize that our trial judges are honorable, fair and

competent, and although we employ an abuse of

discretion standard, we do so recognizing that the judge

himself is best qualified to gauge his ability to preside

impartially. Hence, a trial judge should grant the motion

to recuse only if a doubt exists as to his or her ability to

preside impartially or if impartiality can be reasonably

questioned.

In re A.D., 93 A.3d 888, 893 (Pa. Super. 2014) (citations and quotations

omitted).

In the instant matter, Judge Solomon was not the original judge

assigned to the case. Given Father’s practice in Greene County, both of the

judges that comprise the bench of the Greene County Court of Common Pleas

had recused themselves. The matter was submitted to the Administrative

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did not become a final, appealable order until the motion to compel had been

adjudicated. The issue is properly before us.

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Office of Pennsylvania Courts, who assigned Judge Solomon. In his brief,

Father argues that the case should have been transferred to Allegheny County,

but no such request was formally made. Father reasons that Judge Solomon

should have recused, because Judge Solomon was the only judge to ever hold

him in contempt.

Judge Solomon told Father that his mere knowledge of Father as a

practitioner would not prevent him from being impartial:

[I]n my years on the bench, if every attorney that I ruled

against would ask to recuse me from a case, I would have

no cases to hear. I mean, I’ve ruled against everyone. I

judge each case on the basis of what’s presented to me, the

facts of the case and the law…. But I certainly have no

animosity toward you. I don’t know you personally, I come

to Greene County as a senior judge when I’m asked to

handle matters that cannot be handled by the two judges

that are seated here. I will certainly treat you as I would

any counsel before me or any individual before me with

utmost fairness, and I would follow the law.

N.T., 1/28/19, at 5-6.

In the written word, Judge Solomon’s explanation is particularly

eloquent and thoughtful. The parents cannot communicate a reason why we

should not take it at face value. We conclude that the court did not abuse its

discretion when it denied the parents’ motion to recuse.

Next, we determine whether Fayette CYS followed proper procedure

when seeking the parents’ compliance. The parents contend that the trial

court permitted erroneous procedure when it allowed Fayette CYS to proceed

on an unverified motion, as opposed to a proper petition under 55 Pa. Code

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§ 3490.73 of the CPSL. Fayette CYS argues that the matter was properly

initiated by a motion under Pa.R.C.P. 208.1, which does not require

verification. We disagree with Fayette CYS and agree with the parents; a

motion is an improper mechanism to initiate an action of this kind.

The CPSL charges county agencies with investigating each report of

suspected child abuse. See 23 Pa.C.S.A. § 6368(a). Our Legislature has

expressly authorized the Department of Public Welfare (DPW) to adopt

whatever regulations are necessary to implement the CPSL. See 23 Pa.C.S.A.

§ 6348. Title 55 of the Pennsylvania Administrative Code, Section 3490.73,

“Petitioning the court,” provides:

The county agency shall petition the court if one of the

following applies:

….

(2) A subject of the report of suspected child abuse refuses

to cooperate with the county agency in an investigation, and

the county agency is unable to determine whether the child

is at risk.

55 Pa. Code § 3490.73(2) (emphasis added).

CYS should not have initiated this action by motion, and the court should

not have allowed it. However, we cannot ignore the fact that the trial court

granted parents’ request for a ten-day continuance and provided them notice

and an opportunity to be heard, which is not necessarily required before the

court could have forced the parents’ compliance.

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In In re Petition to Compel, supra, this Court held that the issuance

of an ex parte order granting an agency’s petition to compel did not violate

the appellants’ due process rights. 875 A.2d at 379. “Particularly in the arena

of child abuse/neglect and assuming probable cause for a search did exist, it

would be unreasonable to direct the courts to give notice and schedule a

hearing in every instance.” Id.

In other words, had Fayette CYS followed proper protocol, the agency

could have theoretically obtained an order forcing the parents to comply

without affording them an opportunity to be heard. Whatever harm could

have befallen the parents by the motion’s defective posture was substantively

cured by the court when it allowed the parents to contest Fayette CYS’s

position. Although the court and Fayette CYS should have abided by the

procedure set forth in the CPSL and corresponding regulations, we do not find

that the court abused its discretion by entertaining the unverified motion,

because the court took sworn testimony prior to granting the request of

Fayette CYS.

Next, we turn to the crux of the parents’ appeal. They contend that CYS

lacked probable cause to conduct an inspection of their home, and that the

court’s order compelling them to comply with the inspection was a violation of

their rights against unreasonable searches and seizures under the Fourth

Amendment to the United States Constitution and Article I, Section 8 of the

Pennsylvania Constitution. We agree.

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“The Fourth Amendment to the Constitution of the United States

protects people from unreasonable government intrusions into their legitimate

expectations of privacy. Upon closing the door of one's home to the outside

world, a person may legitimately expect the highest degree of privacy known

to our society.” Id. at 373 (citations and quotation marks omitted). The

Fourth Amendment to the United States Constitution reads as follows:

The right of the people to be secure in their persons, houses,

papers and effects, against unreasonable searches and

seizures, shall not be violated, and no warrants shall issue,

but upon probable cause, supported by oath or affirmation,

and particularly describing the place to be searched, and the

persons or things to be seized.

U.S. Const. Amend. IV.

Article I, Section 8 of the Pennsylvania Constitution provides:

§ 8. Security from searches and seizures

The people shall be secure in their persons, houses, papers

and possessions from unreasonable searches and seizures,

and no warrant to search any place or to seize any person

or things shall issue without describing them as nearly as

may be, nor without probable cause, supported by oath or

affirmation subscribed to by the affiant.

Pa. Const. Art. I, § 8.

“The protection against unreasonable searches and seizures afforded by

the Pennsylvania Constitution is broader than that under the federal

Constitution.” In re Petition to Compel, 875 A.2d at 373-374

(citing Commonwealth v. Jackson, 698 A.2d 571, 573 (Pa. 1997), and

Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991)).

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In In re Petition to Compel, which was a matter of first impression,

this Court concluded that a CYS inspection of a home is subject to the

limitations of state and federal search and seizure jurisprudence. Id. at 374.

We determined that the authorization of a home inspection was constitutional

so long as CYS had probable cause:

Certainly it is possible to read the [Department of Public

Welfare’s] regulations in a manner consistent with the

Fourth Amendment. [CYS] is required to visit the child's

home at least once during its investigation of child abuse

allegations; if a home visit is refused and [CYS] is unable to

determine whether conditions in the home present a risk to

the child, it must petition the court. Nowhere in the CPSL

or Title 55 of the Code does it state that the court must

grant [CYS]’s petition regardless of the factual

circumstances. As we interpret the statute and agency

regulations, [CYS] must file a verified petition alleging

facts amounting to probable cause to believe that an

act of child abuse or neglect has occurred and

evidence relating to such abuse will be found in the

home.

Id. at 377. (Emphasis added).

In In re Petition to Compel we determined that the local CYS did not

allege facts sufficient for a finding of probable cause necessary to compel the

parents’ cooperation. In that case, the agency received a ChildLine5 referral

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5 ChildLine is “[a]n organizational unit of the Department [of Human Services

of the Commonwealth] which operates a Statewide toll-free system for

receiving reports of suspected child abuse established under section 6332 of

the CPSL (relating to establishment of Statewide toll-free telephone number),

refers the reports for investigation and maintains the reports in the

appropriate file. In addition, it also receives reports of student abuse under

Subchapter C.1 of the CPSL (relating to students in public and private

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of possible child abuse and medical neglect. The agency contacted the parents

and several medical facilities which provided treatment to the child. The

agency also sought a home inspection, but the parents refused. The agency

then obtained an ex parte order compelling the parents’ to allow the agency

to conduct a home inspection. This Court ruled that the order ran afoul of the

parents’ rights against unreasonable searches and seizures, because the

agency lacked probable cause:

Instantly, the only relevant facts alleged were that [CYS]

had received a ChildLine referral for possible medical

neglect. Clearly, this was insufficient to support the court's

order compelling appellants to submit to a search of their

home. Nor did [CYS] allege exigent circumstances; the

court's order giving appellants ten days to comply indicates

that this was not an emergency situation where the child's

life was in imminent danger.

Id. at 378.

Notably, we also observed that there was no link between alleged abuse

and the home conditions. Id.

Turning to the case at bar, we similarly conclude that Fayette CYS did

not allege sufficient facts to warrant compelled compliance. Here, while there

were three separate reports regarding Father’s alleged intoxication, none

contained any specificity regarding the degree or type of impairment, nor

____________________________________________

schools).” 55 PA ADC § 3490.4. Often, “a ChildLine” is shorthand for the

report itself.

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alleged how such impairment caused any of the children to be abused or

neglected. Only the first report alleged that a child was even present when

Father appeared to be under the influence. And even then, Fayette CYS did

not obtain potentially available security footage to see for themselves.6

More importantly, none of the interviews with the children resulted in

further suspicion of abuse or neglect. Fayette CYS did not allege any concerns

with Mother, beyond the allegation that she was a victim of domestic violence

– a charge that could not be substantiated by court records. And critically,

Fayette CYS did not allege a link between the alleged abuse/neglect and the

parents’ home. Nor did Fayette CYS allege exigent circumstances; in fact, the

allegations were months old.7

It appears here that CYS merely sought compliance so that they could

close the investigation. See N.T., 1/28/19, at 48. These facts do not

constitute a sufficient foundation for a finding of probable child abuse or

neglect under the CSPL. The court erred when it ordered the parents to submit

to a home inspection.

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6The report alleged that Father was with one of his children when he went to

Greene County CYS’s headquarters in the course of his representation of

another parent. Greene CYS is located in the Fort Jackson Building, which is

equipped with security cameras. The supervisor testifying on behalf of Fayette

CYS stated that she was unaware that Greene CYS had surveillance in the

building. See N.T., 1/28/19, at 11.

7 We are cognizant of Fayette CYS’s explanation that the investigation was

impeded by bureaucratic delays, as the case was transferred from judge to

judge during the holidays. However, such a delay did not prevent the agency

from taking the children into protective custody if the agency felt that the

circumstances necessitated removal. See 23 Pa.C.S.A. § 6315.

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Finally, we address Father’s final contention that the court erred by

ordering an observable drug test. While a urine analysis would undoubtedly

constitute a search, where constitutional safeguards would necessarily attach,

we conclude that there is no statutory authority for a CYS agency to petition

for a drug test prior to a dependency adjudication. Unlike a home inspection,

a drug screen is not mentioned, much less mandated, anywhere in either the

CPSL, or Title 55 of the Pa. Code.

Fayette CYS cites a domestic relations rule, Pa.R.C.P. 1915.8 (“Physical

and Mental Examination of Persons”), as authorization for a court to order the

drug testing of a parent. Rule 1915.8(a) provides that, in custody cases, a

court may order the children and/or any party to submit to and fully participate

in an evaluation by an appropriate expert. The 2007 Comment to that Rule

specifies that the Rule “addresses the process for any number of expert

evaluations a court may order in a custody case, including, but not limited to,

physical, mental health, custody and/or drug and alcohol evaluations, and/or

home studies.”

Both Fayette CYS and the trial court cite our decision in Luminella v.

Marcocci, 814 A.2d 711 (Pa. Super. 2002), wherein we concluded that the

court-ordered drug test of a parent under Rule 1915.8 was allowable, so long

as the respective search survived constitutional scrutiny.8 But we do not

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8There, we conducted the three-prong balancing test adopted by the Supreme

Court of the United States to ascertain the constitutionality of a search. In

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conduct a constitutional analysis, because the instant matter is not a custody

dispute.

Unlike in the domestic relations context, here – in a CYS investigation

conducted prior to a dependency adjudication – there is no legislative

underpinning that authorizes the court to order the drug testing of a parent.

While the court is itself a state actor, a contested custody action between

parents (or statutorily authorized family members) does not involve the same

type of governmental intrusion as a CYS Agency’s investigation of child abuse

or neglect, either in degree or in kind. The General Assembly has legislated

extensively in the area of child abuse and neglect. In our role as an error-

correcting court, we decline to derive from another area of the law the

government’s authority to drug test parents, prior to a dependency

adjudication, when no explicit provision authorizing the same exists in either

the CPSL or corresponding regulations.

We echo the emphasis in In re Petition to Compel. We are

sympathetic to CYS agencies’ mission and mandate to conduct and complete

investigations in order to protect the children of our Commonwealth from

abuse and neglect. Id., 875 A.2d at 378-379. We do not suggest that Fayette

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Vernonia School Dist. 47J v. Acton, 515 US 646, 654 (1995) the Supreme

Court announced three considerations to determine the reasonableness of a

governmental search that was conducted pursuant to special needs beyond

the normal need for law enforcement. They are: 1) the nature of the privacy

interest upon which the search at issue intrudes; 2) the character of the

intrusion that is complained of; and 3) the nature and immediacy of the

governmental concern at issue, and the efficacy of the means for meeting it.

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CYS should have stood by and done nothing in the face of these allegations.

Here, Fayette CYS did all it could do: the agency interviewed each child; it

reviewed court records to determine the veracity of the domestic violence

allegation; it requested a home visit and when the parents refused, it

petitioned the court. See id. at 379. This fulfilled Fayette CYS’s statutory

obligations.

The court should have denied the request to compel further cooperation

from the parents. At that point, Fayette CYS would have had several options,

including further investigation to collect additional facts to support the

issuance of a search warrant for the parents’ home, and/or filing a formal

petition for dependency. The agency’s responsibilities under the DPW

regulations and the CPSL to investigate each and every allegation of child

abuse and neglect, including visiting the child’s home at least once during its

investigation, do not trump the parents’ constitutional rights under the Fourth

Amendment of the United States Constitution and Article I, Section 8 of the

Pennsylvania Constitution.

Order vacated. Jurisdiction relinquished.

Judge Musmanno joins the Memorandum.

Judge Ott concurs in the result.

Judgment Entered.

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Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/26/2019

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